HHR The Duchess of Sussex v Associated Newspapers Ltd

Consequential relief following summary judgment may be granted on issues already finally resolved, even where subsidiary ownership or remedy issues remain for trial. A declaration is discretionary and is appropriate where it provides a clear, useful and authoritative statement of the result.

An injunction for misuse of private information is not automatic, but damages will rarely be sufficient where the interference is significant and there is a real risk of repetition. Publication of material in a judgment does not generally place the underlying private information in the public domain. A publication order in intellectual-property proceedings is discretionary and must pursue a legitimate compensatory or deterrent purpose while remaining necessary and proportionate.

The claimant brought claims for misuse of private information, breach of data protection rights and copyright infringement arising from publication of extracts of a private letter. In an earlier judgment, the court entered summary judgment for the claimant on liability for misuse of private information and on copyright subsistence and infringement, while leaving copyright ownership and consequential issues unresolved: [2021] EWHC 273 (Ch).

This judgment determined the remaining procedural and consequential matters, including declarations, injunctions, publication and dissemination, delivery up, an account of profits, damages, costs and permission to appeal. The central questions were what relief could properly be granted before the remaining ownership issues were tried, and whether publication of the judgment justified further publication of the underlying private information.

1. Relief and procedure. The court ordered a further hearing to determine copyright ownership, the account of profits and remaining financial and data-protection issues. The claimant was entitled to elect an account of profits for copyright infringement. The question whether damages for misuse of private information could be recovered alongside that account was deferred.
2. Declaration. A declaration is discretionary. Applying the factors identified in FSA v Rourke, including justice to each party and whether the declaration serves a useful purpose, the court granted a declaration recording that the defendant had misused private information and infringed copyright. The declaration was useful because media coverage had not reliably conveyed the effect of the earlier judgment.
3. Privacy injunction. The claimant had established a significant interference with her privacy rights, and there was a sufficient risk of further publication. Damages were not a sufficient remedy. A final injunction was therefore granted, subject to a limited carve-out permitting fair and accurate reporting of the judgment. Publication of information in the judgment did not give the defendant a licence to republish the information in other contexts.
4. Copyright relief. A final copyright injunction and delivery-up order were deferred because the claimant’s ownership of all relevant copyright had not yet been finally determined. An interim injunction was not sought after the issue was raised and was therefore not granted.
5. Publication and dissemination. Article 15 of the Directive 2004/48/EC and paragraph 26.2 of the Civil Procedure Rules 1998 confer a discretion to order publication of information concerning an intellectual-property decision. Relevant considerations include deterrence, public awareness, the strength of the policy case, and procedural and practical proportionality. The order must not be punitive or humiliating. Having regard to freedom of expression, section 12(4) of the Human Rights Act 1998, the extent of existing publicity and the defendant’s conduct, the court ordered limited, factual publication concerning the copyright findings.
6. Final orders. The claimant received specified costs, including 90 per cent of the summary-judgment costs, and a payment on account of £450,000. Permission to appeal was refused because the proposed appeal had no real prospect of success and no other compelling reason for an appeal was identified.

First-instance consequential judgment following the earlier summary judgment decision: [2021] EWHC 273 (Ch). Permission to appeal was refused, without prejudice to an application to the Court of Appeal.